Attacking and Defending Drunk Driving Tests - Criminal Inadmissibility to Canada

Overcoming Criminal Inadmissibility to Canada

Attacking and Defending Drunk Driving Tests by Don Bartell, Mary Catherine McMurray, and Anne ImOberstegBy Marisa Feil*

Before travelling to Canada, individuals with a criminal history should verify their entry status because even seemingly minor offenses (e.g., a DUI) can render an individual inadmissible. Per Canadian immigration rules, criminally inadmissible individuals are not allowed to enter Canada for any reason without special authorization from Canadian immigration.

Criminal inadmissibility to Canada can be overcome in three ways:

  • By obtaining a Temporary Resident Permit (TRP).
  • By criminal rehabilitation.
  • By deemed criminal rehabilitation due to the passage of time.

Temporary Resident Permit (TRP)

Applicants can apply for a TRP at a Canadian visa office or at a port of entry. A TRP is required until criminal inadmissibility has been removed if:

  • Fewer than five years have elapsed from the completion of the sentence; OR
  • More than five years have elapsed from the completion of the sentence, but the individual has not applied for, or received, a positive decision on an application for criminal rehabilitation.

As Canadian immigration rules discuss, the main requirement for obtaining a TRP is to demonstrate a significant reason to be in Canada.  Generally, the government is looking for a reason related to the person’s work, family, or an emergency.

Frequently, TRPs are sought by individuals in the transportation industry (pilots, flight attendants, truck drivers, etc.) or in events and sales who have minor offenses preventing them from entering Canada.  If these individuals are able to produce an application demonstrating that they have a significant need to enter Canada and that Canada would benefit by having them in the country, they are likely to be issued a TRP. Success depends both on the nature of their reason for entering Canada as well as the strength of the application they put together.

The Canadian government’s immigration rules encourages individuals to apply well in advance if they know they must enter Canada and are inadmissible.  At present time, it is taking several months to process a TRP at a Canadian consulate in the United States. Although an individual can wait to apply at a port of entry while attempting to travel into Canada, he or she runs the risk of being turned away.

Canadian Immigration Rules Regarding Criminal Rehabilitation

Criminal rehabilitation is an application process whereby a person requests absolution from the Canadian Government for a particular crime or crimes committed outside Canada.  Once an individual successfully completes criminal rehabilitation, the individual has a clean slate and will not have to apply for permission to enter Canada again.

Any individual wishing to enter Canada is well advised to apply for both criminal rehabilitation and a TRP. This increases the chance of being able to enter Canada on a TRP while a criminal rehabilitation application is in process. A TRP is a temporary solution, while criminal rehabilitation offers a permanent solution.

To be eligible for criminal rehabilitation an individual must meet three criteria:

  • The individual must have committed an act outside of Canada that would constitute an offense under a Canadian federal statute (i.e., an offense under the Canadian Criminal Code);
  • The individual must have been convicted of, or have admitted to committing the act; and
  • Five years must have passed since the individual completed all sentences, including jail, license suspension, payment of fines, and probation.

An applicant must demonstrate that he or she is in a stable position where there is no risk of committing another crime. When considering whether an individual is rehabilitated, the visa officer will consider the following rehabilitation factors:

  • Nature of the offense – was the offense serious or non-serious?
  • How long ago was the applicant’s last offense?
  • How many offenses are on the applicant’s record? Is he or she a first-time offender?
  • What is the likelihood that the applicant will reoffend in the future?
  • How has the applicant changed his or her life to ensure against reoffending?

There are numerous ways to demonstrate a stable lifestyle such as professional ties and community involvement. If the Canadian official reviewing the case is convinced that the accused maintains a healthy lifestyle and that he or she is unlikely to re-offend in Canada or pose a threat to Canadians, the official may grant an approval for the Criminal Rehabilitation.

Deemed Rehabilitation

Canadian immigration rules discuss that individuals who have been convicted of no more than one non-serious offense outside of Canada may be deemed rehabilitated if 10 years have passed since the date that their sentence was completed (including probation, the payment of fines, or any suspensions).

The single offense must not be equivalent to a serious offense under Canadian law. If the maximum sentence for the equivalent offense in Canada is 10 years or more, the offense is considered to be “serious criminality.”

Individuals convicted of a serious offense (e.g. DUI causing bodily injury or death) will never be deemed rehabilitated by the passage of time.  An individual with a serious offense on his or her record will always have to undergo criminal rehabilitation, even if it is the only offense on the record.

Deemed rehabilitation is also available for individuals convicted of “summary” offenses.  Summary offenses are very minor offenses.  Examples include indecent telephone calls, trespassing at night, and causing a disturbance. If an individual has been convicted of more than one offense, but all of the offenses are equivalent to summary offenses in Canada, the individual is criminally inadmissible, but will be deemed rehabilitated after five years.

If an individual has only one summary offense on his or her record, the individual is not criminally inadmissible to Canada.

Hiring a Canadian Immigration Lawyer

An experienced Canadian immigration lawyer can prepare the appropriate application and recommend strategies that will increase the individual’s chances of entering Canada successfully.

In addition to assistance with TRP and criminal rehabilitation applications, a Canadian immigration lawyer can prepare a legal opinion letter to explain why an individual was never criminally inadmissible to Canada because his or her conviction is not equivalent to any Canadian offense, or because the individual was not convicted of the charges. These types of letters can also be written to explain deemed rehabilitation, as there is no official immigration application to do so.

The Canadian government does not facilitate admissibility applications for applicants. Government employees will not typically answer phone inquiries, and the information on the government’s immigration website is incomplete. Due to recent cutbacks, the Canadian consulates no longer offer walk-in service for any type of application. Furthermore, changes to the requirements and processing of these applications occur all the time, so it is important for a person with a DUI or other offense on his or her record to speak to an expert before attempting to cross the Canadian border.

Only a lawyer certified by one of the provincial bar associations in Canada, or a certified Canadian immigration consultant, is authorized to represent an individual in a Canadian immigration application.

*Canadian Immigration Lawyer Marisa Feil has lectured to audiences across the United States on the Canadian immigration consequences of a drunk driving conviction. She can be reached at:

Marisa Feil

FWCanada Inc.
4030 St. Ambroise Suite 250
Montreal, Quebec
514-316-3555 ext. 204

[email protected]

This post is an abridged version of material from the 2014-1-2016 edition of Attacking and Defending Drunk Driving Tests by Don Bartell.

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